ILLINOIS POLLUTION CONTROL BOARD
    October 14,
    1982
    ILLINOIS ENVIRONMENTAL PROTECTION
    AGENCY,
    Complainant,
    v.
    )
    PCB 81—98
    WASTELAND, INC., an Illinois
    Corporation, VERNON LAMOREAUX,
    DENNIS LAMOREAUX, ROGER PEMBLE
    and WASTE RESOURCES CORPORATION,
    an Illinois Corporation,
    Respondents.
    ORDER OF THE BOARD
    (by J.D.
    Durneile):
    On September 30,
    1982 the Illinois Environmental Protection
    Agency (Agency) filed
    a motion to clarify or modify the Board’s
    August 26,
    1982 Order in this matter.
    No response was
    filed.
    The motion to modify is hereby granted in part and the motion to
    clarify is granted.
    In making these motions the Agency has indicated a concern
    that the Board’s August 26,
    1982 Order is not final
    for purposes
    of enforcement through the Circuit Court,
    and that it “is probably
    not appealable.”
    This concern results from the interaction of
    Section 41 of the Environmental Protection Act (Act), which limits
    judicial review of Board Orders to “final Orders or determinations,”
    par.
    3—101 of the Administrative Review Act
    (ARA) which defines
    “administrative decision,” and Supreme Ct.
    Rule 335(h) (2), which
    applies that definition to Appellate Court review of Board actions.
    In the Board’s August 26,
    1982 Order, several actions are
    required.
    First,
    a penalty is
    to be paid.
    Second, a bond or other
    security is to be obtained.
    Third,
    Respondents are
    to cease and
    desist.
    Fourth,
    the operating permit is revoked.
    Fifth,
    the
    site is to be covered.
    Sixth,
    a hydrogeologic survey is to be
    performed.
    Seventh, a monitoring program is to be established
    including installation of leachate monitoring wells.
    Eighth,
    remedial actions are to be taken and the site is to be permanently
    closed.
    There should be no question that the first seven of these
    actions are final determinations.
    Proceedings before the Board
    have been terminated and the period for reconsideration has passed.
    The sole reason for the Board’s retention of jurisdiction was for a
    determination of whether it is necessary to exhume the materials
    improperly disposed of at the landfill site.
    In this regard the
    Board notes that the landfill site and the paper recovery site are
    49-149

    —2—
    to be considered a single site for that purpose,
    i.e. as regards
    Condition
    8 of the August 26,
    1982 Order.
    The Agency argues that under Condition
    8 a permit applicant
    could “file a perfunctory application, obtain a denial,
    and quit
    without appealing to the Board,” thereby leaving no “adequate
    remedy.”
    Such an action would, of course, violate the Order that
    a permit be obtained within 180 days and could be enforced through
    the Circuit Court,
    However,
    such
    a course places ultimate over-
    sight responsibilities with the Circuit Court rather than with
    the Board, which was the reason for the Board’s retention of juris-
    diction.
    The Agency points out that the Board’s goal can be accomplished
    through a “contingent exhumation Order” whereby failure to obtain
    the required permit would result in a requirement that the materials
    be exhumed.
    That mechanism allows Respondents to demonstrate to
    the Agency through the permitting process that exhumation is
    unnecessary, and the Agency’s determination of whether to approve or
    deny that permit would be appealable to the Board,
    thus retaining
    Board oversight.
    The difficulty with the Agency’s suggestion,
    however,
    is that
    the decision on the necessity of exhumation would be made at the
    same time as the decision as
    to what constitutes an adequate
    monitoring and interim closure plan.
    Thus the Agency would not
    have the benefit of the monitoring results prior to its exhumation
    determination; nor would the Board have such information before
    it
    for any appeal of that permitting decision.
    However, the Board
    finds merit in the suggestion that continued Board oversight be
    accomplished through its permit review powers rather than through
    the retention of jurisdiction.
    Therefore,
    the Board will modify its prior Order
    to establish
    a mechanism whereby the exhumation decision can be based upon
    complete monitoring information while retaining its oversight
    through its permit review powers.
    The Board notes that the time periods established in this
    modified Order reflect the statutory requirements for permit
    review,
    and that while a more expeditious schedule would be de-
    sirable, these time periods are required to protect Respondents*
    due process rights.
    On the other hand,
    the Board will look
    with disfavor upon any extension of these dates without good
    cause.
    The Board hereby modifies its August
    26,
    1982 Order in this
    matter in the following respects:
    1.
    Condition
    7 is modified
    to read:
    “Operating Permit
    No. 1976—13—OP is hereby revoked.”
    2.
    Condition 11 is deleted as is the second to last
    sentence on page 27 of the corrected Opinion referring
    to the retention of jurisdiction.
    49-150

    —3—
    That sentence will be replaced with the following:
    It is the intent of the Board in framing the following
    Order that appropriate remedies be achieved in an
    expeditious and orderly manner.
    3.
    Condition
    8 is deleted and the following is sub-
    stituted:
    8.
    Respondents shall remove all unpermitted refuse
    from both the Landfill and the Paper Recovery
    Sites within one year unless a permit is
    obtained from the Agency within 335 days of the
    date of this Order to allow remedial monitoring
    measures to ensure that the environment is
    protected while information is gathered to
    determine whether exhumation of the unpermitted
    materials is required.
    a.
    The Respondents,
    if they apply
    for such a
    permit,
    shall apply within 120 days of the date
    of this Order.
    b.
    Such application for a permit shall include
    but not be limited to:
    i.
    Installation of an adequate system of
    leachate monitoring wells and monitoring programs;
    ii.
    Installation of adequate gas vents and
    flares and an adequate monitoring system;
    and
    iii. Appropriate
    steps
    to isolate and contain
    combustible refuse so as to prevent the spread of
    fires.
    c.
    The term of permit
    if granted,
    shall be the
    minimum period required to obtain meaningful results
    from the monitoring program plus 120 days.
    d.
    At least
    90 days prior to the expiration of
    such permit,
    if granted, Respondents
    shall apply
    for a permit for
    final, closure of the sites.
    e.
    The Respondents,
    if they have not obtained
    a permit from the Agency within 335 days of the
    date of this Order
    to establish a monitoring
    program,
    shall file within
    365
    days of the date
    of this Order
    a plan and schedule acceptable to
    the Agency with the Agency for the exhumation,
    removal and disposal of the material.
    f.
    Unless a permit for final closure of the
    sites
    is obtained within 215 days of the date
    of application Respondents whall within 235 days of
    the date of application
    file a plan and schedule
    49- 151

    acceptable to the Agency with the Agency for
    exhumation,
    removal and disposal of the
    material.
    4.
    Condition 10
    (a)
    is deleted and the following is
    substituted:
    10
    a.
    Completed a hydrogeological survey of
    both the Landfill and the Paper Recovery
    Sites performed by a registered engineer,
    engineering
    firm, or other qualified
    professional.
    IT IS SO ORDERED.
    Board Member
    N. Werner abstained.
    I,
    Christan L.
    Moffett, Clerk of the Illinois Pollution
    Control Bo~r~d,hereby certify, that the above Order was adopted
    on the
    (‘-~
    1’~ day of
    ~
    ~
    ____
    ,
    1982 by a vote of
    -
    (
    ~(
    Ii
    Christan L. Moffet?~Clerk
    Illinois Pollution Control Board
    49-152

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